Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Baxter [2023] NSWCATOD 185 Hearing dates: 19 - 20 June 2023; written submissions 4, 18 July 2023 Date of orders: 14 December 2023 Decision date: 14 December 2023 Jurisdiction: Occupational Division Before: The Hon J Stevenson ADCJ, Principal Member S Cochrane, Senior Member P Coop, Senior Member C Gardiner, General Member Decision: 1 The registration of the Respondent Philip James Baxter is cancelled pursuant to section 149C(1)(b) of the Health Practitioner Regulation National Law. 2 A non-review period of five (5) years is set in respect of order 1, pursuant to section 149C(7) of the Health Practitioner Regulation National Law. 3 Pursuant to section 149(5) of the National Law the Respondent Philip James Baxter is prohibited from providing a health service, as defined in section 4 of the Health Care Complaints Act 1993 for a period of five (5) years. 4 The Respondent shall pay the costs of the Applicant Health Care Complaints Commission as agreed or assessed. Catchwords: Chinese Medicine practitioner – unsatisfactory professional conduct – professional misconduct – protective orders – prohibition order - costs Legislation Cited: Health Care Complaints Act (1993) (NSW), s 4 Health Practitioner Regulation National Law (NSW), s 149C, Schedule 5D Cases Cited: Briginshaw v Briginshaw [1938] CLR 336 Health Care Complaints Commission v Kazeme [2020] NSWCATOD 25 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Livermore [2021] NSWCATOD 115 Director-General, Department of Aging, Disability and Home Care v Lambert [2009] NSWCA 102 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Brush [2015] NSWCATOD 120 Health Care Complaints Commission v Choi [2017] NSWCATOD 82 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Philip James Baxter (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) GTC Lawyers (Respondent) File Number(s): 2022/00218738 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 NSW), the disclosure and/or publication of the name set out in the Schedule to the Complaint is prohibited. Reasons for decision THE PROCEEDINGS 1. By an Amended Complaint dated 13 June 2023 the Health Care Complaints Commission ("the Applicant" or "the HCCC") sought findings that the Respondent, Mr Philip James Baxter ("the Practitioner" or "the Respondent") is guilty of unsatisfactory professional conduct and professional misconduct, as those terms are defined in the Health Practitioner Regulation National Law (NSW) ("the National Law"). In 1999 the Practitioner obtained an Advanced Diploma of Health Science (Acupuncture) from the Australian College of Natural Medicine. In 2012 he was registered as a Chinese Medicine Practitioner. 2. The original complaint was dated 22 July 2022 and the Respondent filed a Reply thereto on 13 February 2023. The Applicant filed an Amended Complaint dated 13 June 2023. In summary the Applicant alleged that the Practitioner: * inappropriately touched the bare chest and nipples of a female patient ("Patient A") * inappropriately touched the vagina and clitoris of Patient A * inappropriately inserted his fingers into the vagina and rectum of Patient A * failed to maintain appropriate professional boundaries with Patient A * provided care and treatment to Patient A which exceeded the scope of practice of a Chinese Medicine Practitioner * failed to obtain informed consent from Patient A * failed to maintain and keep adequate records 1. The parties agreed that Stages 1 and 2 of the proceedings would be determined in one hearing. This matter proceeded on 19 and 20 June 2023 and was then adjourned to 11 September 2023. This adjournment was necessary due to the sudden illness of the legal representative of the Respondent, which prevented her from appearing on 20 June 2023. On that date, the parties agreed to file and serve written submissions by 18 July 2023. On 14 August 2023 the parties agreed to vacate the further hearing date and rely solely upon their written submissions. 2. The Respondent made the following admissions in his written submissions: "a) The Applicant proved that the Respondent's actions amounted to unsatisfactory professional conduct. The Respondent admits he acted outside of the professional scope but denies the circumstances. b) The Respondent admitted his alleged actions constituted professional misconduct subject to section 139E of the Health Practitioner Regulation National Law (NSW) (National Law) no 68 of 2009." 1. In our view it is necessary to set out in full the Amended Complaint, as the Respondent denied certain Particulars thereof throughout the proceedings. The Amended Complaint read as follows: COMPLAINT ONE The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of Chinese medicine. PARTICULARS OF COMPLAINT ONE 1. On or about 3 June 2017, the practitioner inappropriately rubbed Patient A's bare chest and breasts, and squeezed and rubbed Patient A's nipples. 2. On or about 23 June 2017, the practitioner inappropriately massaged Patient A's bare chest and breasts, and squeezed Patient A's nipples 3. On or about 30 June 2017, the practitioner inappropriately massaged Patient A's bare chest and breasts, and squeezed Patient A's nipples. 4. On or about 8 September 2017, the practitioner inappropriately massaged Patient A's chest and breasts and squeezed Patient A's nipples. 5. On or about 22 or 25 September 2017, the practitioner inappropriately massaged Patient A's chest and breasts, and squeezed Patient A's nipples. 6. On or about 2 or 10 October 2017, the practitioner inappropriately massaged Patient A's chest and breasts, and squeezed Patient A's nipples. 7. On or about 17 October 2017, the practitioner inappropriately pulled Patient A's underpants to the side and used a massage machine on her inner upper thighs, exposed vagina and pelvic bone. 8. On or about 17 October, the practitioner inappropriately used his hands to massage Patient A's vagina and clitoris. 9. On or about 20 October 2017 or 24 November 2017, the practitioner inappropriately inserted his fingers into Patient A's vagina, in circumstances where Patient A was lying face down and wearing no underpants. 10. On or about 20 October 2017 or 24 November 2017, the practitioner inappropriately inserted his fingers into Patient A's anus, in circumstances where Patient A was lying face down and wearing no underpants. 11. On or about 20 October 2017 or 24 November 2017, the practitioner inappropriately massaged Patient A's chest and breasts, and pulled and twisted Patient A's nipples. 12. On or about 10 November 2017 or 18 December 2017, the practitioner inappropriately spread Patient A's legs and used his fingers to penetrate Patient A's vagina, in circumstances where the practitioner was not wearing gloves. 13. On or about 10 November 2017 or 18 December 2017, the practitioner inappropriately inserted his fingers into Patient A's anus. 14. On or about 24 November 2017, the practitioner inappropriately pulled Patient A's underpants to one side and using his hands, massaged the outside of Patient A's exposed vagina. 15. On or about 15 or 18 December 2017, the practitioner inappropriately pulled Patient A's underpants to one side and using his hands, rubbed Patient A's exposed vagina and clitoris. 16. On or about 20 December 2017, the practitioner inappropriately pulled Patient A's underpants to one side and using his hands, rubbed Patient A's exposed vagina. 17. On or about 21 May 2018, the practitioner inappropriately pulled Patient A's underpants to one side and using his hands, rubbed the outside of Patient A's exposed vagina. 18. By engaging in the conduct in particulars 1 to 17 the practitioner: a. acted contrary to each or any combination of clauses 3.13, 3.14 and 8.2 of the Chinese Medicine Board of Australia Code of Conduct (March 2014). b. Provided care and treatment that was outside the scope of practice as a Chinese medicine practitioner. 19. From 3 June 2017 to on or about 21 May 2018, the practitioner failed to obtain Patient A's informed consent prior to his conduct on the dates specified in particulars 1 to 17 and in doing so: a. acted contrary to clause 3.5 of the Chinese Medicine Board of Australia Code of Conduct (March 2104). 20. From 3 June 2107 to 23 June 2017, the practitioner provided care and treatment that was outside the scope or practice as a Chinese medicine practitioner, in that: a. the practitioner sent text messages to Patient A in which he offered three complimentary consultations for lymphatic drainage and cranial sacral work; b. the practitioner provided two consultations to Patient A without charge, in which the practitioner performed techniques that he described as "lymphatic drainage" and "craniosacral therapy". 21. The practitioner failed to maintain appropriate professional boundaries in that the practitioner inappropriately: a. on or around 23 July 2107 sent a text message to Patient A that contained a website link to a video about a dating website; b. on or around 20 December 2017, during a consultation, said words to the following effect to Patient A: i. "You're wonderful. You just keep going and don't' give up. I think you are amazing", ii. to which Patient A responded "I just seem to attract cowardly men". c. on 21 December 2017, sent a text message to Patient A which said words to the following effect: i. "To avoid being called cowardly, I thought I better take a risk, and ask you out for a drink? Commiserate over a crazy year". 22. The practitioner failed to make and keep adequate records sufficient to facilitate the continuity of patient care in relation to Patient A, in that: a. … ; b. from 3 June 2017 to 23 June 2017, he failed to make and keep records of his offer of free consultations or provision of free consultations; c. From 3 June 2017 to 21 May 2018, he failed to make and keep sufficient records of "internal manipulation" methods, including any clinical findings or reasoning. 23. By engaging in the conduct in particular 22, the practitioner breached clause 8.4 of the Chinese Medicine Board of Australia Code of Conduct (March 2014). The conduct in Complaint One and the particulars thereof is relied upon individually or in combination with other particulars and/or sub-particulars as amounting to unsatisfactory professional conduct. COMPLAINT TWO The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. Engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or ii. Engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. PARTICULARS OF COMPLAINT TWO Complaint One and the particulars thereof is repeated and relied upon individually and cumulatively." 1. As noted the Practitioner filed a Reply dated 13 February 2023, which addressed the original Complaint. He filed also Responses dated 19 December 2019 ("first Response"), 10 June 2020 ("second Response") and an undated later Response ("third Response"). We were informed only during the course of the hearing that paragraphs 1-17 of the third Response referred to a Notice to Give Information/Produce Documents dated 12 May 2020 and the remainder addressed the Complaint. 2. We found that the structure of these Responses made it difficult to distil the position of the Practitioner as to each Particular of the Complaints. In making this observation, we intend no criticism of the Respondent and/or his solicitors. We endeavour below to identify the stance of the Practitioner as to each of the Particulars. Background 1. The Respondent is approximately 49 or 50 years of age. In 1999 he obtained an Advanced Diploma of Health Science (Acupuncture) from the Australian College of Natural Medicine. Subsequently, he completed post graduate certificates in Japanese Acupuncture and East Asian Needle Therapy. 2. In July 2012 the Respondent was registered as a Chinese Medicine practitioner. Between 2014 and 2019 he undertook several courses conducted by an organisation known as The Barral Institute. An undated document provided by the Chinese Medicine Council of New South Wales stated: "our conclusion is that the teaching of the Barral Institute does NOT (emphasis in original) fall within the scope of practice of a Chinese Medicine practitioner in Australia." 3. Patient A, who is now approximately 45 years old, began to consult with the Respondent in February 2016. For a number of years she had suffered from chronic pain as a result of endometriosis and injuries which she sustained in a car accident in 2007. The Practitioner made the following notes of the first consultation: "… a history of endometriosis, sacral pain, leg pain, fatigue, constipation, motor vehicle accident, fractured spine and pelvis, laparoscopy, chronic sinus infections, headaches, chronic fatigue syndrome, severe period pain, separation and single parent." 1. Patient A consulted on the Respondent on a number of occasions between February 2016 and May 2018, at a multidisciplinary practice and also at a clinic in his home. The last consultation occurred on 21 May 2018. In subsequent days Patient A complained of inappropriate touching by the Practitioner on multiple occasions, to a then-boyfriend, her sister and her general practitioner. 2. The then-partner of Patient A provided a statement to police dated 28 May 2020, in which he said inter alia: " 4. In May 2018, I received a text message from [Patient A] which related to her being touched inappropriately by her acupuncturist. … After receiving this message, [Patient A] and I spoke about what had happened to her in more depth but she didn't go into too much detail. She told me that she had found out that he wasn't qualified to do certain adjustments or the internal massages or adjustments. She explained to me that she wasn't even aware that he was going to perform such procedures on her. 1. An exchange of text messages between Patient A and her then-partner was annexed to her police statement dated 5 February 2019. Inter alia, Patient A wrote "he started to touch me inappropriately, I told him no don't do that. And he said sorry. …" Patient A also annexed a text to her ex-partner which read inter alia : "something not so right happened last year, but I thought it was more accidental – then he asked me out: and I said no I wasn't interested. That there are boundaries of what's professional, with patients wasn't acceptable. And then he went back to professional. Then yesterday. I feel a bit weird. I felt so angry, then disappointed, then that my trust is compromised." 1. The notes of the general practitioner of Patient A for a consultation on 25 May 2018 read inter alia: "At the end of the appointment [Patient A] broke down in tears and confided that she had been touched inappropriately on the genitals by an acupuncturist at [ ]. Long discussion re incident and not an isolated one. Acupuncturist has previously touched/tweaked her breasts and nipples under the guise of treatment; ?he even asked her out? Suggested that [Patient A] report this activity to the police and the AHPRA …" 1. Patient A made a complaint to police on 25 May 2018 and provided a statement dated 30 July 2018. There was no evidence that any charges were laid against the Respondent. On 19 September 2019 the Chinese Medicine Council of New South Wales conducted a hearing pursuant to section 150 of the National Law. The Respondent provided no written evidence and did not attend the hearing. On 23 October 2019 the Council ordered that the registration of the Practitioner be suspended with effect from 19 September 2019. The Relevant Law 1. Relevantly for present purposes Section 139B(1)(C)(i) of the National Law prescribes that: (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following: "…(l) any other improper or unethical conduct relating to the practice of purported practice of the practitioner's profession. 1. Section 139E of the National Law defines professional misconduct as: (a) Unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the Practitioner's registration; or (b) More than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the Practitioner's registration. 1. Section 3 of the National Law sets out its objectives and guiding principles. This section relevantly provides as follows: 1 The object of this Law is to establish a national regulation and accreditation scheme for – (a) the regulation of health practitioners; … 2 The objectives of the National Registration and Accreditation Scheme are – (a) to provide for protection of the public by assuring that only health practitioners who are suitably trained and qualified to practice in a confident and ethical manner are registered; … 3 The guiding principles of that National Registration and Accreditation Scheme are as follows - … (c) restrictions on the practice of the health professional are to be imposed only if it is necessary to ensure health services are provided safely and are of an appropriate quality. 1. Section 3A of the National Law provides – "the objective and guiding principles [NSW]; In the exercise of functions under a New South Wales provision, the protection of the health and safety of the public must be the paramount consideration." 2. The Applicant bears the onus of proof of each element of its Complaints on the balance of probabilities. Having regard to the seriousness of the Complaints and the consequences, it is appropriate that the Tribunal apply the well-known standard of proof adopted by the High Court of Australia in Briginshaw v Briginshaw [1938] CLR 336. That standard requires that the Tribunal must be "comfortably satisfied" or "must feel an actual persuasion" that the allegations are made out on the balance of probabilities. THE EVIDENCE AND WITNESSES 1. The Applicant relied upon a bundle of written evidence (Exhibit 1), together with evidentiary certificates (Exhibit 2 and 3). These documents included police statements by Patient A, dated 30 July 2018 and 30 April 2019. This written evidence also included witness statements obtained by police offers in 2019 and 2020, in the course of an investigation in relation to the conduct of the Practitioner. There was no evidence that criminal charges were laid against the Practitioner. 2. To his credit, the Respondent did not require Patient A for cross-examination. Accordingly, the only oral evidence given at the hearing was that of the Respondent. 3. The Practitioner relied upon three Responses, the first and second of which were dated 18 December 2019 and 10 June 2020. As noted above, the third Response referred partly to a Notice to Give Information/Produce Documents and otherwise to the original Complaint. 4. Exhibit 5 consisted of a document entitled "Agreed Facts". This helpful document obviously was prepared after the Applicant filed its volume of written evidence and made reference to this material. COMPLAINT 1 1. We will endeavour to address the Particulars of this complaint by reference to subject matter. The following categories of alleged conduct will be considered in turn: * Inappropriate touching of chest and nipples of Patient A * Inappropriate touching of the genital area and insertion of fingers into the vagina and rectum of Patient A * breaches of the Chinese Medicine Board of Australia Code of Conduct Particulars 1,2,3,4,5,6 and 11: Inappropriate Touching of the Chest and Nipples of Patient A 1. These Particulars concerned allegations that the Practitioner inappropriately touched the bare chest area of Patient A and squeezed her nipples. By his Reply, the Respondent denied Particulars 1 to 5 inclusive of the original Complaint. Particulars 1 to 4 inclusive were unchanged in the Amended Complaint. Particulars 5 and 6 were amended only so as to provide alternate dates of the alleged conduct but not the substance of these aspects of the Complaint. In the course of his cross-examination at the hearing, the Respondent admitted Particulars 4 and 5. The dispute in respect of Particulars 1,2 and 3 seemed to relate only to the date of these alleged events, as the Respondent said in his oral evidence: "my recollection is that the breast touching started at a later time". He admitted Particular 6, which alleged inappropriate touching of the chest and nipples of Patient A on or about 2 or 10 October 2017. 2. In his first Response the Practitioner stated that he "avoided treating this area directly" for the first 18 months because he wished to protect the modesty of Patient A. He maintained that his clinical purpose, when he commenced "direct treatment", was "to relieve the muscular tension from coughing". He stated that Patient A "volunteered to remove her bra" on the third occasion, which he construed as "flirting" with him. He said that he "was in love" with Patient A and "genuinely believed that she had romantic feelings" for him. 3. In his first Response the Practitioner admitted that he touched the breasts of Patient A "in a sexual manner". He stated that he cannot recall the precise dates when he did so. He suggested that he touched Patient A in this sexual manner at the end of therapeutic massages of her chest on two occasions in October and December 2017. 4. In his second Response the Practitioner admitted that he touched the breasts of Patient A in a sexual manner "on several occasions". He could not identify the dates of this behaviour but his best memory was that there were two or three such occasions, commencing in October 2017. He reiterated that this touching occurred in the context of a therapeutic massage. He provided this same information in the third Response. 5. Accordingly, the Practitioner admitted that he "inappropriately massaged Patient A's chest and breasts, and squeezed Patient A's nipples on or about 8 September 2017, 22 September 2017 and 10 October 2017. There remained a dispute as to whether he engaged in this conduct on or about 3 June 2017, 23 June 2017, 30 June 2017 and 20 October 2017 or 24 November 2017. Particulars 7,8,9,10,11,12,13,14,15,16 and 17: Inappropriate Touching of the Vagina and Clitoris of Patient A and insertion of fingers into vaginal and anal canals. 1. The Amended Complaint varied or added to the dates of this alleged conduct. The Amended Complaint omitted an allegation that the Practitioner failed to wear gloves when he inserted his fingers into the rectum of Patient A on or about 10 November 2017 or 18 December 2017. In his Reply the Practitioner admitted that he massaged the upper thigh and hip of Patient A but denied that he inappropriately massaged her vagina and clitoris. 2. In his Reply, the Practitioner admitted that he "attempted to do the work of an internal physiotherapist" when he inserted his fingers into the vagina and rectum of Patient A. He contended that he did so with her verbal and written consent. He maintained that he explained these techniques to Patient A and obtained both her verbal and written consent before he attempted "internal manipulation". 3. In his Reply the Practitioner admitted Particular 12 of the original Complaint, which alleged that he inappropriately "used his fingers to penetrate Patient A's vagina in circumstances where [he] was not wearing a glove" on or about 10 November 2017. The only change to this Particular in the Amended Complaint was to add an alternative date of 18 December 2017. In his third Response the Practitioner retreated from this admission. He stated that he had recalled that Patient A was suffering acute pain on 10 November 2017, thus he did not apply internal manipulation techniques on that occasion. 4. In his third Reply the Practitioner stated: "I am confident that the first internal manipulation occurred on 24 November 2017." He stated further that he carried out three internal manipulations on 24 November 2017, only the first of which involved a rectal component. 5. In his first Response the Practitioner stated that he began to massage the upper thigh of Patient A "due to severe muscle spasm in that area due to years of pain". He admitted that he massaged "very close to and touching the right side of her vagina", "for a minute or two most probably at the appointments on 17/10/2017, 10/11/2017". He said that this behaviour coincided with the commencement of sexual touching of her breasts. He contended that he perceived these activities to be "consensual" and "based on a mutual attraction". The Practitioner did not add to or alter this information in his second or third Responses. 6. The Practitioner stated that he carried out a "vaginal adjustment only" in a therapeutic manner, on 18 December 2017. He conceded that his touching progressed to sexual contact after he had completed the internal manipulation. He stated in his first Response: "after the procedure was complete [Patient A] let her knees fall apart and put her feet together in a manner that I interpreted as an invitation for me to touch her sexually". Accordingly, the Practitioner admitted that he touched the vagina of Patient A inappropriately on 18 December 2017. He adhered to this account in his second and third Responses. He elaborated upon his clinical reasoning and the details of these manipulations in the third Response. ParticularS 18, 19, 20, 21, 22 & 23: Actions Contrary to the Chinese Medicine Board of Australia Code of Conduct ("the Code") 1. Essentially, the Applicant contended that the Respondent breached the Code in four ways. Firstly, he failed to maintain appropriate boundaries with Patient A; secondly, he provided care and treatment which was beyond the scope of practice of a Chinese Medicine practitioner; thirdly, he failed to obtain informed consent from Patient A and fourthly, he failed to keep and maintain adequate records. 2. By his Reply the Practitioner admitted Particular 18(a), which alleged that he acted contrary to "each or any combination of clauses 3.13, 3.14 and 8.2 of the Chinese Medicine Board of Australia Code of Conduct". Clause 3.13 concerns the circumstances in which a practitioner/client relationship should be terminated by the care provider. Clause 3.14 concerns the observation of boundaries when a practitioner provides treatment for a person in a close relationship, for example friends, work colleagues and family members. Clause 8.2 concerns maintenance of professional boundaries. 3. By his Reply, the Practitioner admitted Particulars 18(b) and 20. Accordingly, he conceded that he provided care and treatment which was beyond the scope of practice of a Chinese Medicine Practitioner. 4. Particular 20 alleged that the Respondent exceeded the scope of practice of a Chinese Medicine Practitioner. It was contended that he offered three complimentary consultations for lymphatic drainage and cranio-sacral therapy and carried out these procedures, without charge, on two occasions. The Practitioner conceded that he made this offer and carried out these procedures on two occasions in June 2017. 5. By his Reply the Practitioner admitted Particular 22 of the original Complaint. Accordingly, he conceded that he failed to keep and maintain adequate records. 6. The Practitioner maintained that he obtained informed consent from Patient A, before he inserted his fingers into her vagina and anus in order to conduct "internal manipulation". He contended that she gave consent orally and also signed a document, which he prepared, prior to the first occasion of "internal manipulation". 7. In his first Response the Practitioner indicated that in 2016 he studied a unit known as "Visceral Manipulation 3" "through the Barral Institute" and read a textbook called "Urogenital Manipulation". He stated that this text "covers the bladder, prostate, ovaries, uterus, sacrum, tailbone and pelvic floor muscles". He said that this book included material concerning internal manipulation but the coursework for this unit did not cover any such techniques. 8. The Practitioner maintained that he had a conversation with Patient A concerning internal manipulation in approximately October 2017. He said that he explained that these techniques may be of assistance "to lengthen the anterior longitudinal ligament to take pressure off [her] lumbar vertebrae" and "separate adhesions between the bladder and the uterus caused by endometriosis". 9. The Practitioner contended that Patient A asked him about possible use of internal manipulation techniques in a session on 17 October 2017. He maintained that he offered to refer her to a female physiotherapist or, alternatively, to attempt these techniques himself. He suggested that Patient A said words to the effect "I would prefer it if you did the internal manipulation". He contended that he told her that she would need to consider this option carefully and to sign a written consent. His notes for 17 October 2017 record "spoke about doing internal adjustment next time". 10. The Practitioner stated that he prepared a consent form (Annexure G to his statement of 19 December 2019). This document read as follows: "Consent form for Internal Exam & Manipulation Procedure will be digital to prostate, vagina or rectal. I ……………….. consent to digital vaginal or rectal exam & manipulation in order to confirm & treat: -visceral adhesion & -suspensory ligament adaptive shortening based on Osteopathic Listening Diagnosis, as taught buy (sic) the Barral Institute International. 2. I acknowledge that I understand: a) I have been informed in advance, & given time to think about wether (sic) this kind of work appropriate for me & my condition. b) A maximum amount of care will be taken during the procedure. c) Hygiene regulations will be adhered to with the use of gloves & lubricant. d) All techniques are short and specific, and verified by post diagnostics. e) If I feel uncomfortable in any way during application of the techniques, I will ask my practitioner to dis-continue (sic) the procedure. Patient Name…………………………………………………………… Patient Signature………………………………………………………. Date…………………………………………………………………….. Practitioner Name………………………………………………………. Practitioner Signature……………………………………………………." 1. The Respondent maintained that Patient A signed this consent form in a session on 24 November 2017, after which he carried out a vaginal and rectal adjustment. The clinical record for this session include a note "agreed to try internal manipulation today". The signed consent form was not in evidence and Patient A made no reference to any such document in her police statement of 5 February 2019. 2. In his first Response the Practitioner maintained that he "came across the consent form [Patient A] had signed" when he packed to move house on 20 November 2018. He contended that the sight of the form "made him feel very uncomfortable" and that he realised that he "had made a grave and terrible misjudgment in thinking my sexual conduct with her had been consensual". He said further that the sight of the form "triggered a deep personal sadness for me as I had been in love with [Patient A] and felt that I had lost her from my life". He said that he screwed up the signed consent and threw it into a garbage bin. He maintained that he was "not thinking rationally at the time". He indicated that he printed a copy of the unsigned consent form for the purposes of his first Response to the allegations in December 2019. 3. The Respondent admitted Particular 21, which alleged that he failed to maintain appropriate professional boundaries with Patient A. As noted above, he conceded that he sent a link to a dating website to Patient A in July 2017. He admitted also that, during a consultation around 17 December 2017, he said to Patient A words to the effect: "You're wonderful. You just keep going and don't give up. I think you are amazing." He said that Patient A responded: "I just seem to attract cowardly men". 4. The following day, the Respondent agreed that he texted to Patient A: "To avoid being called cowardly, I thought I'd better take a risk and ask you out for a drink? Commiserate over a crazy year." He maintained that he believed her statement to him during the consultation was "a prompt … for me to ask her to spend some time together outside the clinic as friends. I believed at the time that we had developed a rapport that could develop into a relationship and I believe that is what [Patient A] wanted." 5. In his third Response, the Practitioner admitted that he discarded the consent form allegedly signed by Patient A. In this Response he admitted also that he failed to keep notes for the two complimentary consultations and to preserve records for an appropriate time. Further, the Practitioner admitted that he recorded no "methods, clinical findings or reasoning" in respect of the internal manipulations. 6. In his third Response the Practitioner wrote: "I hereby set out my methods, clinical findings or reasoning". In this context he stated inter alia: "As therapists we are always searching for methods to improve the patients life. We consult other professionals, we research and study. In retrospect it appears I had become over-enthusiastic and obsessed with achieving results in unconservative ways, to the ultimate detriment of this patient. There is no way I should ever have considered practising these techniques, ever. Yet with the over-enthusiasm and the encouragement of the patient, these events took place." 7. As noted, the Practitioner admitted that he breached Clause 8.4 of the Chinese Medicine Board of Australia Code of Conduct. This clause obliges a Chinese Medicine Practitioner to maintain clear and accurate health records. He attributed this breach to a state of exhaustion and stress, which he linked to childhood abuse by his brother, disputes in relation to the estate of his father and "confusion regarding boundaries". Obviously, these personal stresses do not relieve him of his obligation to maintain adequate health records. Conclusion and Findings as to Complaint 1 Inappropriate Touching of Chest, Breasts and Nipples of Patient A 1. As observed above, the Respondent admitted that he "inappropriately massaged Patient A's chest and breasts and squeezed Patient A's nipples on or about 8 September 2017, 22 September 2017 and 10 October 2017. Accordingly, we find that the Applicant established Particulars 4,5 and 6 of the Amended Complaint. There was a dispute as to whether he acted similarly on a further four occasions in June 2017. 2. As noted above, the Practitioner could not recall the precise dates upon which he subjected Patient to inappropriate touching of her chest, breasts and nipples. The evidence of Patient A was untested by cross-examination, thus we have no knowledge of the accuracy of her recall of these dates. Although we have suspicions that the Practitioner engaged in this behaviour on more than three occasions, we consider the safe course to be a finding that Particulars 1, 2, 3 and 11 are not proven on the evidence. Inappropriate Touching of Vagina, and Clitoris of Patient A and Insertion of Fingers into Vaginal and Rectal Canals 1. As set out above, the Practitioner admitted that he massaged the vagina of Patient A simultaneously with his sexual touching of her breasts and nipples. He conceded that he did so "most probably" on 17 October 2017 and 10 November 2017. He admitted in his first Response that he touched the vagina of Patient A in a sexual manner on 18 December 2017 after he completed an internal manipulation. In his first Response the Practitioner said that he massaged the outer right thigh on 18 May 2018. He claimed that Patient A asked him to stop but he remembered no vaginal touching on this occasion. He referred to her "discomfort" and stated that "it was never my intention to touch her without her consent". It seems to us to be more probable than not that he touched her vagina in a sexual manner on 18 May 2018, given that she voiced objection and he noted her "discomfort". 2. For these reasons, we find that the Applicant established Particulars 7, 8, 9, 14, 15 and 17. Again, there was a dispute as to whether inappropriate massaging of the vagina and clitoris of Patient A occurred on more than these occasions. Again, we cannot assess the reliability of the untested evidence of Patient A as to these additional dates. Again, we have suspicions that he subjected Patient to this form of inappropriate touching on more than these specified occasions but we consider that the safe course is a finding that Particular 16 is not established on the evidence. 3. It was common ground that the Practitioner inserted his fingers into the vagina and rectum of Patient A. As noted he claimed that he did so for a legitimate clinical purpose of pain relief, by way of internal manipulation. 4. In his first Response, the Practitioner admitted that he carried out internal manipulations on 24 November 2017 and 18 December 2018. In his third Response the Practitioner stated that "there were three visits where I did internal adjustment". He did not provide the date of the third such occasion. 5. In his third Response, the Practitioner stated that he inserted his fingers into the rectum of Patient A only during the first internal manipulation. He contended that he "found the rectal component … to be too invasive …" and did not repeat this procedure. He noted that "it may be an attempt by the victim to increase the number of allegations". 6. Once again, we conclude that the safe course is to make findings based on the admissions of the Practitioner. We find that the Respondent inserted his fingers into the vagina of Patient A on 24 November and 18 December 2017. We find that the Respondent inserted his fingers into the rectum of Patient A on 24 November 2017. 7. It is then necessary that we determine whether the Practitioner inserted his fingers into the rectum and vagina of Patient A "inappropriately" or, as he contended, for a legitimate therapeutic purpose. In our view, this issue may be resolved shortly. It may be that the Practitioner intended to embark upon a legitimate therapeutic exercise of pain relief. The fact is, however, that he was unqualified to carry out any techniques of internal manipulation. Accordingly, we are satisfied that he acted "inappropriately" when he inserted his fingers into the rectum and vagina of Patient A on 24 November 2017 and 18 December 2017. 8. Accordingly, we find that the Applicant established Particulars 9 and 10 as to 24 November 2017. We find that the Applicant established Particular 12 as to 18 December 2017. We find that Particular 13 is not established on the evidence. 9. The Practitioner admitted that he acted contrary to the Chinese Medicine Board of Australia Code of Conduct as specified in Particulars 18 and 20. We find that the Applicant established Particulars 18 and 20 of the Complaint. 10. The only evidence of consent by Patient A to internal manipulation procedures came from the Practitioner. As set out above the only reference in his notes, which could be construed as a discussion about consent, appears on 17 October 2017. He wrote "spoke about doing internal adjustment next time". He made no note of a "consent" by Patient A in respect of any consultation. 11. It may be considered convenient that the Practitioner is now unable to produce the consent form supposedly signed by Patient A on 24 November 2017. It may be thought curious that he did not make a careful note of her consent on each occasion that he carried out these invasive techniques. We have only his evidence as to what he explained to Patient A as to his purpose, methodology and the object of these procedures. The Respondent repeatedly contended that his memory of various relevant events is imperfect. For these reasons, we are satisfied and we find that the Practitioner failed to obtain informed consent (our emphasis) consent from Patient A before he inserted his fingers into her vagina and rectum on 24 November 2017 and18 December 2017. Accordingly, we find that the Applicant established Particular 19. 12. The Practitioner admitted Particulars 20, 21, 22 and 23 of the original complaint. These Particulars were varied in the Amended Complaint only so as to remove an allegation that he deliberately discarded Patient A's consent form and to contend that he failed to keep "sufficient" records of internal manipulation methods. We are satisfied that these amendments do not affect the admissions made by the Practitioner in his Reply. 13. Particular 21(a) contended that the Practitioner inappropriately forwarded to Patient A a link to a dating website "on or around 23 July 2017". In his oral evidence the Respondent said that he developed feelings of "falling in love" with Patient A about 8 months after the first consultation, which means from approximately October 2016. Accordingly, the Practitioner forwarded a link to a dating website to Patient A at a time when he wished to establish a romantic relationship with her. As noted, he admitted this Particular. 14. Particulars 21(b) and 21(c) referred to the following exchange between the Practitioner and Patient A in December 2017: Practitioner: "You're wonderful. You just keep going and don't give up. I think you are amazing. Patient A: "I just seem to attract cowardly men". The next day the Practitioner texted Patient A: "To avoid being called cowardly, I thought I better take a risk, and ask you out for a drink? Commiserate over a crazy year". 1. As set out above, this exchange occurred at a time "when the Practitioner felt that he 'was in love' with Patient A. He admitted that he began to touch her breasts and vagina in a sexual manner in October 2017, in the erroneous belief that she wished him to do so. 2. In our view, it is necessary that this context must be recognised in a consideration of whether the statement "you're wonderful. You just keep going and don't give up. I think you are amazing" constitutes a breach of professional boundaries by the Practitioner. On its face, this statement could be considered innocuous and an attempt to encourage and/or reassure Patient A in coping with her chronic pain. When taken in context, however, there must be real concerns that the Practitioner breached professional boundaries. Notably, he followed up this statement by an invitation for a date to Patient A. The Practitioner admitted these Particulars, perhaps because he is acutely aware of the context of this exchange in terms of his romantic feelings for and sexual touching of Patient A at the relevant time. 3. For these reasons, we find that the Applicant established Particulars 18, 19, 20, 21, 23 and 23 of the Amended Complaint. In our view, there was clear evidence that he breached the Chinese Medicine Board Code of Conduct in the four ways identified in paragraph 37 above. 4. For the reasons set out above we are satisfied, and we find, that the Applicant established that the Respondent engaged in improper or unethical conduct relating to the practice or purported practice of Chinese Medicine. Accordingly, we find that the Practitioner is guilty of unsatisfactory professional conduct for the purposes of section 139B(1)(l) of the National Law. We note that he admitted, in written submissions, that he is guilty of unsatisfactory professional conduct but we have made our finding to that effect independently of this concession. COMPLAINT 2 1. As noted above, the Practitioner conceded that he is guilty of professional misconduct. Based upon the admissions properly made by the Practitioner as to his inappropriate conduct, we are comfortably satisfied that he engaged in professional misconduct in relation to Patient A. In particular, we are mindful of the following admissions by the Practitioner: * he exceeded the scope of practice of a Chinese Medical Practitioner and subjected Patient A to highly personal and intrusive techniques of internal manipulation * he touched the breasts and genital area of Patient A for a sexual purpose * he breached professional boundaries with Patient A in the mistaken belief that she was attracted to him and wished to commence a romantic relationship * he failed to make and keep adequate health records in relation to Patient A, particularly in relation to intrusive internal manipulation procedures * he failed to obtain informed consent from Patient A before he attempted internal manipulation procedures 1. We are satisfied that the Practitioner's exceeding the scope of Chinese Medicine practice, resulting in such intrusive personal procedures; his touching of the breasts and genitals of Patient A in a sexual manner and his breach of professional boundaries are of a sufficiently serious nature when taken together to warrant suspension or cancellation of registration. We note that the Practitioner admitted that he is guilty of professional misconduct. Independently of this concession, we are satisfied and we find that the Respondent is guilty of professional misconduct. STAGE 2 PROCEEDINGS 1. By way of protective orders, the Applicant sought cancellation of the registration of the Practitioner with a non-review period of five years. The Applicant sought also a prohibition order for five years. Additionally, the Applicant sought an order that the Respondent pay its costs of these Proceedings. 2. The Respondent submitted that he should be subject to no order for cancellation of registration. Alternatively, it was contended on his behalf that the "appropriate" non-review period would be one year. The Respondent opposed any order for costs in favour of the Applicant, on the basis that he "Is now in dire financial straits". 3. It is settled law that the jurisdiction of the Tribunal is protective rather than punitive in nature, albeit that orders may have a punitive effect: Director-General, Department of Aging, Disability and Home Care v Lambert [2009] NSWCA 102 at [83] per Basten JA. In the same case, Basten JA observed that … "the fact that there are such punitive effects may remind the court that a protective order should be limited to that which is reasonably necessary to provide the required level of public protection." 1. It is well recognised that protective orders serve a general deterrence function, which was described by Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307 as follows at [35]: "The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practice including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practice." 1. The Applicant sought a prohibition order, for a period of five years, pursuant to section 149C(5)(a) of the National Law. This section provides as follows: (5) if the Tribunal suspends or cancels a registered health practitioner's … registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following – (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; …. 1. The term "health service" is defined in section 4 of the Health Care Complaints Act 1993 (NSW) as follows: 4. Definitions "health service" includes the following services whether provided as public or private services (a) medical, hospital, nursing and midwifery services, (b) dental services, (c) mental health services, (d) pharmaceutical services, (e) ambulance services, (f) community health services (g) health education services, (h) welfare services necessary to implement any services referred to in paragraphs (a) – (g), (i) services provided with Aboriginal and Torres Strait Island health practices and medical radiation practices (j) Chinese medicine, chiropractic, occupational therapy, optometry, osteopathy, physiotherapy, podiatry and psychology services, (j1) optical dispensing, dietitian, massage therapy, naturopathy, acupuncture, speech therapy, audiology and audiometry services (k) services provided in other alternative health care fields, (k1) forensic pathology services (l) a service provided by the regulations as a health service for the purposes of this Act. 1. Section 138 of the National Law is headed (Definitions [NSW]) and provides inter alia that: "prohibition order" has the meaning given by section 149(C)(5). The terms of s149C(5) are set out above in these Reasons. 1. Accordingly, the National Law makes clear that there are two prerequisites for a prohibition order. Firstly, there must be an order for suspension or cancellation of registration of the practitioner. Secondly, the Tribunal must be satisfied that the practitioner poses a substantial risk to the health and safety of members of the public. 2. The nature of the risk necessary to warrant a prohibition order has been considered in previous decisions of the Tribunal. In Health Care Complaints Commission v Kazeme [2020] NSWCATOD 25 ("Kazeme") the Tribunal referred to the decisions of Health Care Complaints Commission v Brush [2015] NSWCATOD 120 ("Brush") and Health Care Complaints Commission v Choi [2017] NSWCATOD 82 ("Choi"). In Kazeme the Tribunal concluded that "a substantial risk to the health of members of the public means a risk that is material, and real or apparent on the evidence, and not a risk that is without substance or speculative". 3. In Brush the Tribunal made a prohibition order in relation to an osteopath. This order prohibited the practitioner from providing health services specified as: "massage therapy involving physical contact of the body; treatment or therapy involving body movement, joints and the musculo-skeletal system; any other alternative or healing, health care or therapies". The Tribunal had concluded that there was a material risk of repetition of misconduct by the practitioner. That being so, the Tribunal determined that the practitioner would pose a substantial risk to the health of members of the public. The Tribunal declined to make a prohibition order in relation to "health education services", as it was not satisfied that the practitioner would pose a substantial (emphasis in original) risk to the health of members of the public in this area. 4. In Choi the Tribunal made an order which prohibited a chiropractor from "providing any health care services, as defined by section 4 of the Health Care Complaints Act 1993 (NSW), whether public, private or volunteer services". The Tribunal had concluded that the evidence established a risk "that is real or apparent … and not a risk that is without substance, or which is fantasy or speculative": Health Care Complaints Commission v Taylor [2010] NSWNT 10; Health Care Complaints Commission v Shara [2015] NSWCATOD 99. 5. We have found the Respondent to be guilty of professional misconduct and note again that he made a concession to that effect in written submissions. Accordingly, in the exercise of our discretion, we are able to make an order for cancellation of his registration pursuant to section 149C1(b) of the National Law. In determining what protective orders are appropriate in the circumstances of these proceedings, the paramount consideration is the protection of the health and safety of the public. 6. The Practitioner has expressed remorse for his offending conduct in strong terms and on repeated occasions. For example, in his First Response he said that he was unable initially to reply to the Complaint because he was "so overwhelmed by horror, shame and guilt and regret …". We accept that the Practitioner now sincerely regrets his actions in relation to Patient A. 7. On the other hand, we are concerned that he continued to assert that Patient A encouraged and/or consented to his sexual touching during therapy sessions. We have referred above to his evidence that she allowed her knees to fall apart in a manner which he construed as an invitation that he touch her vaginal area in a sexual manner. In his Second Response he stated inter alia "when I worked on her chest she was not shy, did not dissuade me, but (I felt) encouraged me to touch her sexually" and "she seemed comfortable with me touching her in a sexual way". 8. We acknowledge that the Practitioner now accepts that he bore responsibility to terminate the therapeutic relationship, when he developed romantic feelings toward Patient A. We have referred above to our difficulty in determining at what point his conduct began to cross the boundaries of a patient/practitioner relationship. In his Second Response he stated "I now understand that her failure to object could never constitute consent". 9. We are concerned that the Practitioner provided no recent evidence from a treating psychologist and/or psychiatrist. In fact, there was no evidence at all from a treating psychiatrist and the most recent report from a psychologist was dated 14 December 2019. 10. In his Third Response, the Practitioner stated that he is "actively engaged with a psychologist and psychiatrist" and that he "continue[s] to receive ongoing care". Regrettably, he presented no evidence as to any recent diagnosis, treatment regime or prognosis from either a psychologist or psychiatrist. In these circumstances, we consider it unsafe to conclude that he has addressed already or is coming to terms with the mental health issues which he claims to have contributed to his offending behaviour. 11. It may be that his unfortunate life experiences have rendered the Practitioner a person vulnerable to the psychological stresses which he claims to have played a part in his unacceptable conduct toward Patient A. The difficulty is that we have no expert evidence to the effect that he has yet addressed these personal issues. We are, therefore, left with real concerns that he may find himself in the future in a similar situation where he again misreads interpersonal cues and acts on his own mistaken beliefs. 12. We acknowledge that the Practitioner stated, in his Third Response, that he has "taken steps to ensure that this situation will not arise again". In this context, he referred again to his engagement with a psychologist and psychiatrist. He referred also to plans for practice which would de-intensify his focus on the overall problems of his patients and create stronger professional boundaries. 13. We are inclined to accept that the Practitioner is sincere in his expression of these intentions. We remain concerned however, in the absence of expert evidence, that he may not have acquired the skills necessary to implement and maintain these stated intentions. 14. For these reasons, we are satisfied and we find that an order for cancellation of the registration of the Practitioner is necessary for the protection of the health and safety of the public. We are of the view that an order for cancellation is preferable to a suspension of registration. We consider that, in the interests of protection of the health and safety of the public, the Respondent should demonstrate that he is a person suitable for re-registration at a future time. 15. In fixing a non-review period, we have regard further to the willingness of the Respondent to exceed the bounds of proper practice of the profession for which he held registration. The Chinese Medicine Board provided an opinion which left no room whatsoever for doubt that his conduct exceeded the proper parameters of practice of their profession. The Respondent explained his conduct, at least in part, as a strong desire to assist Patient A which was compounded by his feelings of love for her. We were provided with no evidence which would persuade us that he would not find himself in a similar situation, and again breach professional boundaries, in the future. 16. Ultimately, we are satisfied that there should be a cancellation of registration with a significant non-review period. In our view, the inescapable conclusion is that the Practitioner engaged in serious misconduct of a sexual nature in relation to Patient A. He transgressed proper patient/practitioner boundaries and demonstrated very clearly a confused notion of consent at that time. He engaged in conduct which far exceeded the proper scope of Chinese medicine practice. 17. In all of these circumstances, we conclude that the registration of the Respondent should be cancelled with a non-review period of five years. We observe again that we were provided with no current expert evidence from a treating psychologist or psychiatrist. Prohibition Order 1. Substantially for the reasons set out above, in relation to cancellation of registration, we are comfortably satisfied that the Respondent poses a substantial risk to the health and safety of members of the public for the purposes of section 149C(5) of the National Law. We are comfortably satisfied that this risk is "material, and real or apparent on the evidence, and not a risk that without substance or speculative": Health Care Complaints Commission v Kazeme [2020] NSWCATOD 25. 2. In this context, we are conscious that the Respondent readily exceeded the proper scope of Chinese medicine practice by engaging in lymphatic drainage, cranio-sacral therapy and internal physiotherapy. In his oral evidence he said: "I wanted to be the one who helped her". In his attempts to "help" Patient A, the Practitioner chose to engage in very personal and intrusive procedures. We have only his word that he would adhere strictly to appropriate methods of practice in the future. In our view it would be dangerous to the health and safety of the public, if the Respondent is at liberty to engage with people as an unregistered practitioner in the future. 3. Again, we are concerned at the absence of expert evidence that the Respondent has successfully addressed the mental health issues which he asserts were a contributing factor in his offending behaviour. In our view, there is no reasonable basis upon which we could safely conclude that he would refrain from providing some form of therapy as an unregistered practitioner. 4. We are satisfied, and we find, that a Prohibition Order is warranted in all of the circumstances. We conclude that such an order should be of the same duration as a non-review period. COSTS 1. As noted, the Respondent opposed the making of any order for costs in favour of the Applicant. In his Third Response he indicated that he continues to work in the grocery and supermarket industry and intends to obtain a mortgage and purchase his first home. 2. The Respondent provided no evidence as to his financial situation. We have no information whatsoever as to the source or level of his current income or commitments. 3. The Court of Appeal has made clear that, as a general rule, costs in proceedings before the Tribunal should follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCATOD 342. Aside from his assertion that he "is in dire financial straits" the Respondent offered no evidence or submission as to any basis for departure from this general rule: Health Care Complaints Commission v Livermore [2021] NSWCATOD 115. 4. In these circumstances, we conclude that the Respondent offered no evidence which would justify a departure from the usual practice as to costs orders in this jurisdiction. We will make the order as sought in the Complaint. ORDERS 1. The orders will be as follow: 1. The registration of the Respondent Philip James Baxter is cancelled pursuant to section 149C(1)(b) of the Health Practitioner Regulation National Law: 2. A non-review period of five (5) years is set in respect of order 1, pursuant to section 149C(7) of the Health Practitioner Regulation National Law. 3. Pursuant to section 149(5) of the National Law the Respondent Philip James Baxter is prohibited from providing a health service, as defined in section 4 of the Health Care Complaints Act 1993 for a period of five (5) years. 4. The Respondent shall pay the costs of the Applicant Health Care Complaints Commission as agreed or assessed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 14 December 2023 - Semicolon removed from Coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2023